Ruling Could Hurt Seizures Of Drug Cash

MIAMI — Customs officers who have been searching airline luggage and cargo for money being taken out of the United States will need a warrant if a federal judge agrees with a U.S. magistrate.

Some law enforcement officers say the magistrate's recommendation would seriously hamper the recovery of illegal drug profits leaving the country.

''It would be devastating,'' said Patrick O'Brien, special agent in charge for the U.S. Customs Service in Miami. ''Were we bound by this recommendation, we would have serious problems.''

''It would be a hindrance to our law enforcement against the drug world, because the drug trade is based on cash,'' said Ana Barnett, executive assistant to U.S. Attorney Leon Kellner of Miami.

U.S. Magistrate Peter Nimkoff recommended last week that U.S. District Judge Alcee Hastings throw out part of a 1984 law that lets customs officials search luggage for unreported cash without obtaining a search warrant.

Nimkoff soon is expected to make a recommendation in a similar case before another federal judge in Fort Lauderdale.

Although it is legal to take money out of the country, a form must be filed if the sum is more than $10,000. Failure to file a report is illegal, and unreported money can be seized by the government.

Defense lawyers say searches without warrants violate travelers' rights. They say the 1984 law went too far in giving law enforcement officers the tools to track drug smugglers' cash.

Customs has the right to search any luggage entering the country to protect its borders, Miami lawyer Guy Turner said, ''But it's kind of hard to argue the reverse, that somebody who is leaving is going to endanger the country.'' Nimkoff made his recommendation after hearings in the case of Edgar Hernandez-Salazar, a Colombian pilot whose bag was opened in a random search of checked luggage at Miami International Airport on May 14, 1985.

Money was found inside, records show.

Hernandez-Salazar was stopped from boarding his flight to Colombia and was found carrying more money, authorities said.

Slightly more than $200,000 was seized, records show. Hernandez-Salazar faces a charge of failing to report the money.

''Prior to them stopping him, they had already seized his bag. They didn't have a tip, they didn't have any particular information saying that was a bag that should be looked into,'' said Turner, who is representing Hernandez- Salazar.

''It was a piece of Samsonite luggage that did not have a name tag on it or the name tag was not clear or something,'' the attorney said.

If such searches were carried further, Turner argued, ''The same thing's going to happen when you leave the country. . . . They could routinely open your luggage and close it back, and you'd never know you had been searched.'' If a district judge adopts Nimkoff's recommendation, the decision becomes law in the federal court district for southern Florida -- a territory that stretches from Key West north to Vero Beach.

Barnett contended the searches of outgoing luggage are not unlike efforts to detect fruit that could be bearing insects out of the country.

''If customs people can search for foodstuffs or other things you can't take out of the country -- there's just a big long list of stuff that can't be taken out of the country -- why can't they search for money?'' she said.

Barnett also said the 11th U.S. Circuit Court of Appeals in Atlan-

ta has ruled in a separate case that searches of baggage leaving the country are permissible.

The appeal court did not rule on the provision Nimkoff considers unconstitutional, however.

Nimkoff said the provision, which allows luggage to be searched without a warrant if customs has reason to believe there may be unreported currency inside, conflicts with another part of the law that provides for warrants in such searches.

And he said the law is vague on what constitutes reason to think money may be inside luggage.

The magistrate already has applied his views in the Hernandez-Salazar case to a second case involving similar charges, that of Luis Jaramillo of Miami.

Jaramillo's hand luggage was searched Sept. 5 before he boarded a flight from Miami International Airport to Medellin, Colombia, and $31,000 found stuffed in baby powder containers was seized, authorities said.

Nimkoff recommended last week that Hastings suppress the cash evidence against Jaramillo, citing the same argument used in Hernandez-Salazar's case.